EXHIBIT 3.2(II)
BY-LAWS
OF
ACCESS ONE COMMUNICATIONS CORP.
(FORMERLY KNOWN AS CLEC HOLDING CORP.)
(A NEW JERSEY CORPORATION)
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ARTICLE I
SHAREHOLDERS
1. CERTIFICATES REPRESENTING SHARES. Certificates representing shares shall set
forth thereon prescribed by Section 14A:7-11, and, where applicable; by Sections
14A:5-21 and 14A:12-5, of the New Jersey Business Corporation Act and by any
other applicable provision of law and shall be signed by the Chairman or
Vice-Chairman of the Board of Directors, if any, or by the President or
Vice-President and may be counter-signed by the Secretary or an Assistant
Secretary or the Treasurer or an Assistant treasurer and may be sealed with the
corporate seal or a facsimile thereof. Any or all other signatures upon a
certificate may be a facsimile. In case any officer, transfer agent, or
registrar who has signed or whose facsimile signature has been placed upon such
certificate shall have ceased to be such officer, transfer agent, or registrar
before such certificate is issued, it may be issued by the corporation with the
same effect as if he were such officer, transfer agent, or registrar at the date
of its issue.
The corporation may issue a new certificate for shares in place of any
certificate theretofore issued by it, alleged to have been lost or destroyed,
and the Board of Directors may require the owner of any lost or destroyed
certificate, or his legal representative, to give the corporation a bond
sufficient to indemnify the corporation against any claim that may be made
against it on account of the alleged loss or destruction of any such certificate
or the issuance of any such new certificate.
2. FRACTIONAL SHARE INTERESTS. Unless otherwise provided in its certificate of
incorporation, the corporation may, but shall not be obliged to, issue fractions
of a share and certificates therefor. By action of the Board, the corporation
may, in lieu of issuing fractional shares, pay cash equal to the value of such
fractional share or issue scrip in registered or bearer form which shall entitle
the holder to receive a certificate for a full share upon the surrender of such
scrip aggregating a full share. A certificate for a fractional share shall
entitle the holder to exercise voting rights, to receive dividends thereon, and
to participate in any distribution of assets of the corporation in the event of
liquidation, but scrip shall not entitle the holder to exercise such voting
rights, receive dividends or participate in any such distribution of assets
unless such scrip shall so provide. All scrip shall be issued subject to the
condition that it shall become void if not exchanged for certificates
representing full shares before a specified date.
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3. SHARE TRANSFERS. Upon compliance with provisions restricting the
transferability of shares, if any, transfers of shares of the corporation shall
be made only on the share record of the corporation by the registered holder
thereof, or by his attorney thereunto authorized by power of attorney duly
executed and filed with the Secretary of the corporation or with a transfer
agent or a registrar , if any, and on surrender of the certificate or
certificates for such shares properly endorsed and the payment of all taxes due
thereon, if any.
4. RECORD DATE FOR SHAREHOLDERS. The Board of Directors may fix, in advance, a
date as the record date for determining the shareholders with regard to any
corporate action or event and, in particular, for determining the shareholders
entitled to notice of or to vote at any meeting of shareholders or any
adjournment thereof; to give a written consent to any action without a meeting;
or to receive payment of any dividend or allotment of any right. Any such record
date shall in no case be more than sixty days prior to the shareholders' meeting
or other corporate action or event to which it relates. Any such record date for
a shareholders' meeting shall not be less than ten days before the date of the
meeting. Any such record date to determine shareholders entitled to give a
written consent shall not be more than sixty days before the date fixed for
tabulation of the consents or, if no date has been fixed for tabulation, more
than sixty days before the last day on which consents received may be counted.
If no such record date is fixed, the record date for a shareholders' meeting
shall be the close of business on the day next preceding the day on which notice
is given, or, if no notice is given, the day next preceding the day on which the
meeting is held; and the record date for determining shareholders for any other
purpose shall be at the close of business on the day on which the resolution of
the Board of Directors relating thereto is adopted. When a determination of
shareholders of record for a shareholders' meeting has been made as provided in
this section, such determination shall apply to any adjournment thereof, unless
the Board of Directors fixes a new record date under this section for the
adjourned meeting.
5. MEANING OF CERTAIN TERMS. As used herein in respect of the right to notice of
a meeting of shareholders or a waiver thereof or to participate or vote thereat
or to consent or dissent in writing in lieu of a meeting, as the case may be,
the term "share" or "shares" or "shareholder" or "shareholders" refers to an
outstanding share or shares and to a holder or holders of record of outstanding
shares when the corporation is authorized to issue only one class of shares, and
said reference is also intended to include any outstanding share or shares and
any holder or holders of record of outstanding shares of any class upon which or
upon whom the Certificate of Incorporation confers such rights where there are
two or more classes or series of shares or upon which or upon whom the New
Jersey Business Corporation Act confers such rights notwithstanding that the
Certificate of Incorporation may provide for more than one class or series of
shares, one or more of which are limited or denied such rights thereunder.
6. SHAREHOLDER MEETINGS.
TIME. The annual meeting shall be held at the time fixed, from time to
time, by the directors, provided that the first annual meeting shall be held on
a date within thirteen months after the organization of the corporation, and
each successive annual meeting shall be held on a date within thirteen months
after the date of the preceding annual meeting. If, for any reason, the
directors shall fail to fix the time for an annual meeting, such meeting shall
be held at noon on the first Tuesday in November. A special meeting shall be
held on the date fixed by the directors.
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PLACE. Annual meetings and special meetings shall be held at such
place, within or without the State of New Jersey, as the directors may, from
time to time, fix. Whenever the directors shall fail to fix such place, the
meeting shall be held at the registered office of the corporation in the State
of New Jersey.
CALL. Annual meetings may be called by the directors or by the
President or by any of officer instructed by the directors to call the meeting.
Special meetings may be called in like manner.
NOTICE OF ACTUAL OR CONSTRUCTIVE WAIVER OF NOTICE. Written notice of
every meeting shall be given, stating the time, place and purpose or purposes of
the meeting. If any action is proposed to be taken which would, if taken,
entitle shareholders to dissent and to receive payment for their shares, the
notice shall include a statement of that purpose and to that effect. The notice
of every meeting shall be given, personally or by mail and, except as otherwise
provided by the New Jersey Business Corporation Act, not less than ten days or
more than sixty days before the date of the meeting, unless the lapse of the
prescribed period of time shall have been waived before or after the taking of
any action, to each shareholder at his record address or at such other address
which he may have furnished by request in writing to the Secretary of the
corporation. Notice by mail shall be deemed to be given when deposited, with
postage prepaid, in a post office or official depository under the exclusive
care and custody of the United States Post Office Department. When a meeting is
adjourned to another time or place it shall not be necessary to give notice of
the adjourned meeting if the time and place to which the meeting is adjourned
are announced at the meeting at which the adjournment is taken and at the
adjourned meeting only such business is transacted as might have been transacted
at the original meeting. However, if after the adjournment the directors fix a
new record date for the adjourned meeting, a notice of the adjourned meeting
shall be given to each shareholder on the new record date. Notice of a meeting
need not be given to any shareholder who submits a signed waiver of notice
before or after the meeting. The attendance of a shareholder at a meeting
without protesting prior to the conclusion of the meeting the lack of notice of
such meeting shall constitute a waiver of notice of him.
VOTING LIST. The officer or agent having charge of the stock transfer
books for shares of the corporation shall make and certify a complete list of
the shareholders entitled to vote at shareholders' meeting or any adjournment
thereof. Any such list may consist of cards arranged alphabetically or any
equipment which permits the visual display of the information required by the
provisions of Section 14A:5-8 of the New Jersey Business Corporation Act. Such
list shall be arranged alphabetically within each class, series, if any, or
group of shareholders maintained by the corporation for convenience of
reference, with the address of, and the number of shares held by, each
shareholder, be produced (or available by means of a visual display) at the time
and place of the meeting; be subject to the inspection of any shareholder for
reasonable periods during the meeting; and be prima facie evidence as to who are
the shareholders entitled to examine such list or to vote at such meeting.
CONDUCT OF MEETING. Meetings of the shareholders shall be presided over
by one of the following officers in the order of seniority and if present and
acting - the Chairman of the Board, if any, the Vice Chairman of the Board, if
any, the President, a Vice President, or, if none of the foregoing is in office
and present and acting, by a chairman to be chosen by the shareholders. The
Secretary of the corporation, or in his absence, an Assistant Secretary, shall
act as secretary of every meeting, but if neither the Secretary nor the
Assistant Secretary is present the Chairman of the meeting shall appoint a
secretary of the meeting.
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PROXY REPRESENTATION. Every shareholder may authorize another person or
persons to act for him by proxy in all matters in which a shareholder is
entitled to participate, whether by waiving notice of or the lapse of the
prescribed period of time before any meeting, voting or participating at a
meeting, or expressing consent without a meeting. Every proxy must be signed by
the shareholder or his agent, except that a proxy may be given by a shareholder
or his agent by telegram or cable or by any means of electronic communication
which results in a writing. No proxy shall be valid for more than eleven months
unless a longer time is expressly provided therein. Unless it is irrevocable as
provided in subsection 14A:5-19(c) of the New Jersey Business Corporation Act a
proxy shall be revocable at will. The grant of a later proxy revokes any earlier
proxy unless the earlier proxy is irrevocable. A proxy shall not be revoked by
the death or incapacity of the shareholder, but the proxy shall continue to be
in force until revoked by the personal representative or guardian of the
shareholder. The presence at any meeting of any shareholder who has given a
proxy does not revoke the proxy unless the shareholder files written notice of
the revocation with the Secretary of the meeting prior to the voting of a proxy
or votes the shares subject to the proxy by written ballot. A person named in a
proxy as the attorney of agent of a shareholder may, if the proxy so provides,
substitute another person to act in his place, including any other person named
as an attorney or agent in the same proxy. The substitution shall not be
effective until an instrument effecting it is filed with the Secretary of the
corporation.
INSPECTORS - APPOINTMENT. The directors, in advance of any meeting, or
of the tabulation of written consents of shareholders without a meeting may, but
need not, appoint one or more inspectors to act at the meeting or any
adjournment thereof or to tabulate such consents and make a written report
thereof. If an inspector or inspectors to act at any meeting of shareholders are
not so appointed by the directors or shall fail to qualify, if appointed, the
person presiding at the shareholders' meeting may, and on the request of any
shareholder entitled to vote thereat, shall, make such appointment. In case any
person appointed as inspector fails to appear or act, the vacancy may be filled
by appointment made by the directors in advance of the meeting, or at the
meeting by the person presiding at the meeting. Each inspector appointed, if
any, before entering upon the discharge of his duties, shall take and sign an
oath faithfully to execute the duties of inspector with strict impartiality and
according to the best of his ability. No person shall be elected a director in
an election for which he has served as an inspector. The inspectors, if any,
shall determine the number of shares outstanding and the voting power of each,
the shares represented at the meeting, the existence of a quorum, the validity
and effect of proxies, and shall receive votes or consents, hear and determine
all challenges and questions arising in connection with the right to vote, count
and tabulate all votes or consents, determine the result, and do such acts as
are proper to conduct the election or vote with fairness to all shareholders. If
there are three or more inspectors, the act of a majority shall govern. On
request of the person presiding at the meeting or any shareholder entitled to
vote thereat, the inspectors shall make a report in writing of any challenge,
question or matter determined by them. Any report made by them shall be prima
facie evidence of the facts therein stated, and such report shall be filed with
the minutes of the meeting.
QUORUM. Except for meeting ordered by the Superior court to be called
and held pursuant to Sections 14A:5-2 and 14A:5-3 of the New Jersey Business
Corporation Act, the holders of the shares entitled to cast at least a majority
of the votes at the meeting shall constitute a quorum at the meeting of
shareholders for the transaction of business.
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The shareholders present may continue to do business until adjournment,
notwithstanding the withdrawal of enough shareholders to leave less than a
quorum. Less than a quorum may adjourn.
VOTING. Each share shall entitle the holder thereof to one vote. In the
election of directors, a plurality of the votes shall elect, and no election
need be by ballot unless a shareholder demands the same before the voting
begins. Any other action shall be authorized by a majority of the votes cast
except where the New Jersey Business Corporation Act prescribes a different
proportion of votes.
7. SHAREHOLDER ACTION WITHOUT MEETINGS. Subject to any limitations prescribed by
the provisions of Section 14A:5-6 of the New Jersey Business Corporation Act and
upon compliance with said provisions, any action required or permitted to be
taken at a meeting of shareholders by the provisions of said Act or by the
Certificate of Incorporation or these By-Laws may be taken without a meeting if
all of the shareholders entitled to vote thereon consent thereto in writing and
(except for the annual election of directors) may also be taken by less than all
of the shareholders who would have been entitled to cast the minimum number of
votes which would be necessary to authorize any such action at a meeting at
which all shareholders entitled to vote thereon were present and voting.
Whenever any action is taken pursuant to the foregoing provisions, the written
consents of the shareholders consenting thereto or the written report of the
inspectors appointed to tabulate such consents shall be filed with the minutes
of proceedings of shareholders.
ARTICLE II
GOVERNING BOARD
1. FUNCTIONS, DEFINITIONS AND COMPENSATION. The business and affairs of the
corporation shall be managed and conducted by or under the direction of a
governing body, which is herein referred to as the "Board of Directors" or
"directors" notwithstanding that the members thereof may otherwise be the titles
of trustees, managers, or governors or any other designated title. The word
"director" or "directors" likewise herein refers to a member or to members of
the governing board notwithstanding the designation of a different official
title or titles. The use of the phrase "entire board" herein refers to the total
number of directors which the corporation would have if there were no vacancies.
The Board of Directors, by the affirmative vote of a majority of directors in
office and irrespective of any personal interest of any of them, shall have
authority to establish reasonable compensation of directors for services to the
corporation as directors, officers or otherwise.
2. QUALIFICATIONS AND NUMBER. Each director shall be at least eighteen years of
age. A director need not be a shareholder, a citizen of the United States, or a
resident of the State of New Jersey. The number of directors of the corporation
shall be not less than three (3) nor more than seven (7). The directors shall
have power from time to time, in the interim between annual and special meetings
of the shareholders, to increase or decrease their number within the minimum and
maximum number hereinbefore prescribed.
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3. ELECTION AND TERM. The first Board of Directors shall hold office until the
first annual meeting of shareholders, and until their successors have been
elected and qualified. Thereafter, directors who are elected at an annual
meeting of shareholders, and directors who are elected in the interim to fill
vacancies and newly created directorships, shall hold office until the next
succeeding annual meeting of shareholders and until their successors have been
elected and qualified. In the interim between annual meetings of shareholders or
of special meetings of shareholders called for the election of directors, newly
created directorships and any existing vacancies in the Board of Directors,
including vacancies resulting from the removal of director for cause or without
cause, may be filled by the affirmative vote of the remaining directors,
although less than a quorum exists or by the sole remaining director. A director
may resign by written notice to the corporation. The resignation shall be
effective upon receipt thereof by the corporation or at such subsequent time as
shall be specified in the notice of resignation. When one or more directors
shall resign from the Board of Directors effective at a future date, a majority
of the directors then in office, including those who have so resigned, shall
have power to fill such vacancy or vacancies, the vote thereon to take effect
when such resignation or resignations shall become effective.
4. REMOVAL OF DIRECTORS. One or more or all of the directors of the corporation
may be removed for cause or without cause by the shareholders. The Board of
Directors shall have the power to remove directors for cause and to suspend
directors pending a final determination that cause exists for removal.
5. MEETINGS.
TIME. Meetings shall be held at such time as the Board shall fix, except that
the first meeting of a newly elected Board shall be held as soon after its
election as the directors may conveniently assemble.
PLACE. Meetings shall be held at such place within or without the State of
New Jersey as shall be fixed by the Board.
CALL. No call shall be required for regular meetings for which the time and
place have been fixed. Special meetings may be called by or at the direction of
the Chairman of the Board, if any, of the President, or of a majority of the
directors in office.
NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER. No notice shall be required for
regular meetings for which the time and place have been fixed. Written, oral or
any other mode of notice of the time and place shall be given for special
meetings in sufficient time for the convenient assembly of the directors
thereat. The notice of any meetings need not specify the business to be
transacted at, or the purpose of the meeting. Any requirement of furnishing a
notice shall be waived by any director who signs a waiver of notice before or
after the meeting, or who attends the meeting without protesting, prior to the
conclusion of the meeting, the lack of notice to him. Notice of an adjourned
meeting need not be given if the time and place are fixed at the meeting
adjourning, and if the period of adjournment does not exceed ten days in any one
adjournment.
QUORUM AND ACTION. Each director shall have one vote at meetings of the Board
of Directors. The participation of directors with a majority of the votes of the
entire Board shall constitute a quorum for the transaction of business. Any
action approved by a majority of the
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votes of directors present at a meeting at which a quorum is present shall be
the act of the Board of Directors unless the New Jersey Business Corporation Act
requires a greater proportion. Where appropriate communication facilities are
reasonably available, any or all directors shall have the right to participate
in all or any part of a meeting, of the Board of Directors or a committee of the
Board of Directors by means of conference telephone or any means of
communication by which all persons in the meeting are able to hear each other.
CHAIRMAN OF THE MEETING. The Chairman of the Board, if any and if present,
shall preside at all meetings. Otherwise, the President, if present, or any
other director chosen by the Board, shall preside.
6. COMMITTEES. The Board of Directors, by resolution adopted by a majority of
the entire Board of Directors, may appoint from among its members one or more
directors to constitute an Executive Committee and one or more other committees,
each of which, to the extent provided in the resolution appointing it, shall
have and may exercise all of the authority of the Board of Directors with the
exception of any authority the delegation of which is prohibited by Section
14A:6-9 of the New Jersey Business Corporation Act. Actions taken at a meeting
of any such committee shall be reported to the Board of Directors at its new
meeting following such committee meeting; except that, when the meeting of the
Board is held within two days after the committee meeting, such report shall, if
not made at the first meeting, be made to the Board at its second meeting
following such committee meeting. Each director of a committee shall have one
vote at meetings of that committee. The participation of directors with the
majority of the votes of a committee shall constitute a quorum of that committee
for the transaction of business. Any action approved by a majority of the votes
of directors of a committee present at a meeting of that committee at which a
quorum is present shall be the act of the committee unless the New Jersey
Business Corporation Act requires a greater proportion.
7. WRITTEN CONSENT. Any action required or permitted to be taken pursuant to
authorization voted at a meeting of the Board of Directors or any committee
thereof may be taken without a meeting if, prior or subsequent to the action,
all members of the Board of Directors or of such committee, as the case may be,
consent thereto in writing and such written consents are filed with the minutes
of the proceedings of the Board of Directors or committee. Such consent shall
have the same effect as an unanimous vote of the Board of Directors or committee
for all purposes and may be stated as such in any certificate or other document
filed with the Secretary of State of the State of New Jersey.
ARTICLE III
OFFICERS
The directors shall elect a President, a Secretary, and a Treasurer,
and may elect a Chairman of the Board, a Vice-Chairman of the Board, one or more
Vice Presidents, Assistant Vice-Presidents, Assistant Secretaries, and Assistant
Treasurers, and such other officers and agents as they shall determine. The
President may but need not be a director. Any two or more offices may be held by
the same person but no officer shall execute, acknowledge, or verify any
instrument in more than one capacity if such instrument is required by law to be
executed, acknowledged, or verified by two or more officers.
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Unless otherwise provided in the resolution of election, each officer
shall hold office until the meeting of the Board of Directors following the next
annual meeting of shareholders and until his successor has been elected and
qualified.
Officers shall have the powers and duties defined in the resolutions
appointing them.
The Board of Directors may remove any officer for cause or without
cause. An officer may resign by written notice to the corporation. The
resignation shall be effective upon receipt thereof by the corporation or at
such subsequent time as shall be specified in the notice of resignation.
DUTIES AND AUTHORITY OF PRESIDENT. The president shall be chief
executive officer of the Corporation. Subject only to the authority of the
Board, he shall have general charge and supervision over, and responsibility
for, the business and affairs of the Corporation. Unless otherwise directed by
the Board, all other officers shall be subject to the authority and supervision
of the president. The president may enter into and execute in the name of the
Corporation contracts or other instruments in the regular course of business or
contracts or other instruments not in the regular course of business which are
authorize either generally or specifically, by the Board. He shall have the
general powers and duties of management usually vested in the office of
president of a corporation.
DUTIES AND AUTHORITY OF VICE PRESIDENT. The vice president shall
perform such duties and have such authority as from time to time may be
delegated to him by the president or by the Board. In the absence of the
president or in the event of his death, inability, or refusal to act, the vice
president shall perform the duties and be vested with the authority of the
president.
DUTIES AND AUTHORITY OF TREASURER. The treasurer shall have the custody
of the funds and securities of the Corporation and shall keep or cause to be
kept regular books of account for the Corporation. The treasurer shall perform
such other duties and possess such other powers as are incident to that office
or as shall be assigned by the president or the Board.
DUTIES AND AUTHORITY OF SECRETARY. The secretary shall cause notices of
all meetings to be served as prescribed in these by-laws and shall keep or cause
to be kept the minutes of all meetings of the shareholders and the Board. The
secretary shall have charge of the seal of the Corporation. The secretary shall
perform such other duties and possess such other powers as are incident to that
office or as are assigned by the president of the Board.
ARTICLE IV
REGISTERED OFFICE, BOOKS AND RECORDS
The address of the initial registered office of the corporation in the
State of 'New Jersey, and the same of the initial registered agent at said
address, are set forth in the original Certificate of Incorporation of the
corporation.
The corporation shall keep books and records of account and minutes of
the proceedings of its shareholders, Board of Directors, and the Executive
Committee and other committee or committees, if any. Such books, records and
minutes may be kept within or outside the State of New Jersey. The corporation
shall keep at its principal office, or at the office of its transfer agent,
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or at its registered office, a record or records containing the names and
addresses of all shareholders, the number, class, and series of shares held by
each and the dates when they respectively became the owners of record thereof.
Any of the foregoing books, minutes, or records may be in written form or in any
other form capable of being converted into readable form within a reasonable
time.
ARTICLE V
CORPORATE SEAL
The corporate seal shall be in such fixed as the Board of Directors
shall prescribe.
ARTICLE VI
FISCAL YEAR
The fiscal year of the corporation shall be fixed, and shall he subject
to change, by the Board of Directors.
ARTICLE VII
CONTROL OVER BY-LAWS
On and after the date upon which the first Board of Directors shall
have adopted the initial corporate By-Laws, which shall be deemed to have been
adopted by the shareholders for the purpose of the New Jersey Corporation Act,
the power to make, alter, and repeal the By-Laws of the corporation may be
exercised by the directors or the shareholders; provided, that any By-Laws made
by the Board of Directors may be altered or repealed, and new By-Laws made, by
the shareholders.
I HEREBY CERTIFY that the foregoing is a full, true and correct copy of
the By-Laws of CLEC HOLDING CORP., a New Jersey Corporation, as in effect on the
date hereof.
WITNESS my hand and the seal of the corporation.
Dated: August 12, 1997
/s/ Linda Pellegrino
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Assistant Secretary of
CLEC HOLDING CORP.
(SEAL)
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